2013年8月18日

Liberalism has
long been the dominant political philosophy in the West. However, since the
eighties, it has been challenged by communitarian critics like Michael Sandel
(1982), Charles Taylor (1985, 1990), Alasdair MacIntyre (1981, 1988, 1990), and
Michael Walzer (1983). One typical example of the liberal-communitarian
controversy is the prolonged debate between Michael Sandel, a prominent
communitarian, and John Rawls, a leading liberal, which has gone on for nearly
thirty years. The earlier Rawls’ A Theory
of Justice (1971) attempts to provide a universalist justification of
liberalism,[1]
and argues for the priority of the right over the good. Sandel, in his Liberalism and the Limits of Justice (1982),
argues that Rawls has presupposed a controversial and defective theory of
self-identity: a conception of unencumbered self who can choose to attach to any
community at will. Sandel argues instead that personal identity is at least
partially constituted by his communal ties and the values he is committed to.
Later Rawls moves towards a political conception of liberalism which eschews
controversial doctrines, tries to be neutral towards different comprehensive
theories, and builds the just political order upon the overlapping consensus
alone (Rawls 1980, 1985). This culminates in his Political Liberalism (1993).

Sandel once
again responded. His critique of Rawls’ political liberalism is summarized in a
new chapter in the second edition of his Liberalism
and the Limits of Justice (1998). His
major criticisms are threefold: (i) when we deal with some serious moral issues
like abortion and slavery, it is impossible to be completely neutral towards
controversial moral or religious doctrines; (ii) a kind of reasonable pluralism
also exists in the debate concerning the proper understanding of “justice”;
(iii) the restriction of public political discourse to the overlapping
consensus will make it impoverished. His Democracy’s
Discontent: America in Search of a Public Philosophy (1996) is a defense of
his favoured version of communitarianism, civic republicanism, and can also be
seen as a response to Rawls. Rawls now justifies his political liberalism
mainly by claiming that it is implicit in the American political culture.
Sandel (1996) contains a rich analysis of the history of American politics, the
burden of which is to show that the liberal tradition has led to various
problems, and that civic republicanism is also a tradition implicit in the
American political culture. This book has provoked a lot of responses from
liberals and communitarians alike, which are collected in Allen and Regan
(1998), together with Sandel’s response.

In this paper,
I will look at Sandel’s criticisms of Rawls’ political liberalism, and the
debate between Sandel and his critics.

Rawls:
From A Theory of Justice to Political Liberalism

In 1971, John Rawls
published his very influential book, A
Theory of Justice. Previously claims about rights and justice were usually
justified with respect to utilitarianism. This kind of justification, however,
depends on human preferences and desires, which are largely contingent. Rawls intended
to establish our intuitions about justice on a more secure basis, and to answer
objections to his theory of justice.

Rawls proposes two principles of justice:

“a) each person has an equal claim to a fully adequate scheme of
equal basic rights and liberties, which scheme is compatible with the same
scheme for all; and in this scheme the equal political liberties, and only
those liberties, are to be guaranteed their fair value.

b) Social and economic inequalities are to satisfy two conditions:
first, they are to be attached to positions and offices open to all under
conditions of fair equality of opportunity; and second, they are to be to the
greatest benefit of the least advantaged members of society.” (Rawls 1993, pp. 5-6).[2]

These principles express an egalitarian kind of liberalism, and the
second one is called the difference principle. To justify them, Rawls resorts
to the idea of original position, which is supposed to model a fair situation
for a social contract. In the original position, everyone is put under the veil
of ignorance, i.e., they know nothing about their intelligence, power, income,
social status, etc. Under this situation, Rawls believes that rational people
will agree on the above principles of justice. So those principles are fair
ones which would gain the consensus of all rational people in a fair situation.

Whether Rawls succeeds to prove his principles is a controversial
question. For example, Alan Gewirth thinks that the assumption of the veil of ignorance
in the original position already presupposes egalitarianism. So as a proof of
egalitarianism, the original position is circular (Gewirth 1984, p. 9). Others
contend that not all rational people would choose as Rawls suggests. Perhaps those
with a more adventurous spirit would prefer a society where they can possibly gain
much more than they can in an egalitarian society.

Even some liberals agree that Rawls’ idea of original position is
not neutral. For example, Amy Gutmann thinks that in the original position, the
“resulting principles of justice … clearly rely on certain contingent facts:
that we share some interests (in primary goods such as income and
self-respect), but not others (in a particular religion or form of family
life); that we value the freedom to choose a good life or at least the freedom
from having one imposed upon us by political authority. If we do not, then we
will not accept the constraints of the original position” (Gutmann 1992, pp. 124-5).
Similarly, Richard Bellamy argues that in the original position whether the parties
would prioritize liberties depends on their temperament or other desires. For
example, it is not clear that they would insist on the liberty of conscience.
Why can’t the people trade religious and moral convictions for other interests?
(Bellamy 1999, p. 54) Another common criticism is that Rawls hasn’t
convincingly explained why people in real life should care about the agreement
made in the entirely hypothetical original position (Kukathas and Pettit 1990,
p. 112). Moreover, many scholars think that even if the original position were
actual, people may still have reasons not to keep the agreement in the original
position when doing so is against their interests.

The early Rawls appears to suggest that the original position
provides a kind of universalist justification of his principles of justice: “the
conditions embodied in the description of this situation [original position]
are ones that we do in fact accept. Or if we do not, then we can be persuaded
to do so by philosophical considerations… Each aspect of the original position
can be given a supporting explanation… Thus to see our place in society from
the perspective of this position is to see it sub specie aeternitatis: it is to regard the human situation not
only from all social but also from all temporal points of view” (Rawls 1971, p.
587).

Furthermore, despite his later denial, Rawls does seem to presuppose
a metaphysical conception of the self: “We should not attempt to give form to
our life by first looking to the good independently defined. It is not our aims
that primarily reveal our nature but rather the principles that we would
acknowledge to govern the background conditions under which these aims are to
be formed and the manner in which they are to be pursued. For the self is prior
to the ends which are affirmed by it; even a dominant end must be chosen from
among numerous possibilities…. We should therefore reverse the relation between
the right and the good proposed by teleological doctrines and view the right as
prior” (Rawls 1971, p. 560).

“The parties [in the original position] regard moral personality and
not the capacity for pleasure and pain as the fundamental aspect of the self…
They think of themselves as beings who can and do choose their final ends…
Their fundamental interest in liberty and in the means to make fair use of it
is the expression of their seeing themselves as primarily moral persons with an
equal right to choose their mode of life” (Rawls 1971, p. 563).

It is upon this conception of self that Sandel fastens his critique,[3] which is
widely regarded as one of the most thorough critique of early Rawls. Sandel
argues that this conception of a radically unsituated self, which can be
detached from its empirically-given features, is untenable. It is also
essentially an abstraction which goes against our actual moral experiences. It
is also doubtful that such a self can be the foundation of a moral theory,
because it is not intelligible to say that a self completely prior to its aims
is capable of rational choice. Any choice made in that situation would
be completely arbitrary. In contrast, Sandel suggests that any self is at least
partially constituted by its aims and values inherited from its community. To
understand community as a product of the contract between fully formed
pre-social individuals is incoherent.

Many liberals rise to defend Rawls against
Sandel’s criticisms. Although they may raise doubts about the communitarian
conception of self,[4]
they usually concede that the idea of an entirely unencumbered self, even if
coherent, is hardly realistic. However, they argue that Rawls’ liberalism is
not committed to such a conception of self. For example, Kukathas and Pettit
pointed out that when Rawls delivered the Dewey Lectures in 1980, he explicitly
admitted the contingency of his principles of justice. Instead of providing a
universalist justification, Rawls is arguing that “[w]hat justifies a
conception of justice is not its being true to an order antecedent to and given
to us, but its congruence with our deeper understanding of ourselves and our
aspirations, and our realization that, given our history and the traditions
embedded in our public life, it is the most reasonable doctrine for us. We can
find no better charter for our social world” (Rawls 1980, p. 519).[5] Rawls’
later paper on the political, rather than metaphysical, conception of justice
as fairness (Rawls 1985) confirmed that it was indeed the direction which Rawls
intended to go. This developmental process culminated in Rawls’ Political
Liberalism (1993), which explains his most recent position systematically.[6]

The main purpose of Rawls’ political liberalism is to provide an
answer to this question: "How is it possible that there may exist over
time a stable and just society of free and equal citizens profoundly divided by
reasonable though incompatible religious, philosophical, and moral
doctrines?" (Rawls 1993, p. xviii) In other words, the aim of political
liberalism is to uncover the conditions of the possibility of a reasonable
public basis of justification on fundamental political questions. Obviously, in
this state of reasonable pluralism, to decide the fundamental political
questions on the basis of some controversial metaphysical or comprehensive
would be unfair to those who reasonably disagree. So the basis has to be
impartial between the points of view of reasonable comprehensive doctrines. The
resulting conception of liberalism is political rather than metaphysical.
Similarly, the ideas of the good in the political conception have to be appropriately
political and distinct from those in more extensive views (Rawls 1993, p. xix).

To achieve this goal, Rawls thinks that the principles of justice
cannot be derived from any comprehensive doctrine. (In this way, the political
conception of justice is a freestanding view.) Rather, they should be uncovered
from the shared political culture: “We
start, then, by looking to the public culture itself as the shared fund of
implicitly recognized basic ideas and principles. We hope to formulate these
ideas and principles clearly enough to be combined into a political conception
of justice congenial to our most firmly held convictions. We express this by
saying that a political conception of justice, to be acceptable, must accord
with our considered convictions, at all levels of generality, on due
reflection, or in what I have called elsewhere ‘reflective equilibrium’” (Rawls
1993, p. 8).

Among the ideas implicit in the political culture, the most
important one is that of “society as a fair system of social cooperation
between free and equal persons viewed as fully cooperating members of society
over a complete life” (Rawls 1993, p. 9). Rawls believes that this can serve as
a fundamental organizing idea which helps to systematically connect the ideas
and principles implied by his justice as fairness view. The original position
is now regarded as a device to represent a situation in which the above
fundamental idea is realized. So to determine the principles which would be
agreed upon in the original position is to draw out the implications of the
shared political culture.

However, Rawls recognizes that people are still largely influenced
by their comprehensive doctrines. So while his principles of justice are
conceived to be freestanding from the perspective of justification, he also
hopes that they “can gain the support of an overlapping consensus of reasonable
religious, philosophical, and moral doctrines in a society regulated by it”
(Rawls 1993, p. 10). In a nutshell, it is to say that although different reasonable
comprehensive doctrines may reason along different routes, they all arrive at
the same conclusion that society is a fair system of social cooperation between
free and equal persons. Only with such an overlapping consensus on the basic
principles of justice, the public reason as Rawls calls it, we can best
guarantee a stable and well-ordered free society.

However, when the comprehensive
doctrines conflict with the public reason, “it is
normally desirable that the comprehensive philosophical and moral views we are
wont to use in debating fundamental political issues should give way in public
life. Public reason … is now best guided by a political conception the
principles and values of which all citizens can endorse” (Rawls 1993, p. 10).
In this way, Rawls again asserts the priority of the right over the good: “an
assignment of special priority to those [basic] rights, liberties, and
opportunities, especially with respect to claims of the general good and of
perfectionist values” (Rawls 1993, p. 6). Rawls admits that political
liberalism also presupposes some ideas of the good. The priority thesis is now
interpreted as the priority of the public political values over the nonpublic
values of comprehensive doctrines. To avoid the charge that political liberalism
is only a disguised hegemony of secularism, Rawls emphasizes that the authority
of public reason only applies to citizens’ reasoning in the public forum about
constitutional essentials and basic questions of justice, and not to the
private realm.

Sandel’s Assessment of
Rawls’ Political Liberalism

Sandel offers three criticisms of Rawls’ political liberalism.
First, he thinks that it is “not always reasonable to bracket, or set aside for
political purposes, claims arising from within comprehensive moral and
religious doctrines. Where grave moral questions are concerned, whether it is
reasonable to bracket moral and religious controversies for the sake of
political agreement partly depends on which of the contending moral or
religious doctrines is true” (Sandel 1998a, p. 196). He agrees that it is
important to secure social cooperation on the basis of mutual respect but
contends that this will not always outweigh any competing interest. To deny
this possibility, we need to assume that no moral or religious conception could
be true. However, Rawls explicitly says that political liberalism does not
depend on this kind of skepticism, which is itself controversial. If we admit
the possibility that one of those conceptions is true, we must also admit that
some moral or religious values may outweigh the political value of toleration
(Sandel 1998a, p. 197).

Sandel uses abortion as an example. He thinks that if the Catholic
doctrine about the fully human status of the fetus is true, then to bracket
this controversy is unreasonable: “the political liberal’s case for the
priority of political values must become an instance of just-war theory; he or
she would have to show why these values should prevail even at the cost of some
1.5 million civilian deaths each year” (Sandel 1998a, p. 198). Sandel is
himself for women’s right to decide. His point is merely that the case for
abortion rights cannot be neutral with respect to that moral and religious
controversy.

Sandel also discusses the debate between Abraham Lincoln and Stephen
Douglas over the issue of slavery in 1858. Douglas
argued that Americans should bracket the moral question about slavery and
appealed to popular sovereignty to resolve the issue, i.e., to leave the people
of each territory free to make their own judgments. In contrast, Lincoln argued that the
policy should express rather than avoid a substantive moral judgment about
slavery; it was reasonable to bracket the question of the morality of slavery
only on the assumption that it was not the moral evil he considered it to be
(Sandel 1998a, p. 199).

Second, Sandel argues that “it cannot be said that there is a ‘fact
of reasonable pluralism’ about morality and religion that does not also apply
to questions of justice” (Sandel 1998a, p. 196). He agrees that there is a
pluralism about conceptions of good. However, it does not follow that there is
an asymmetry between the right and the good because there is a similar
pluralism about the former (Sandel 1998a, p. 203). Disagreements about justice
are legion: “debates about affirmative action, income distributions and tax
fairness, health care, immigration, gay rights, free speech versus hate speech,
and capital punishment… divided votes and conflicting opinions of Supreme Court
justices in cases involving religious liberty, freedom of speech, privacy
rights, voting rights, the rights of the accused” (Sandel 1998a, p. 204).
Sandel anticipates that the liberal may respond by saying that there is no
disagreement about the principles of justice, but only disagreement about how
they should be applied. Sandel then asks, “What of our debates about
distributive justice? Here it would seem that our disagreements are at the
level of principle not application” (Sandel 1998a, p. 205).

Sandel cites the debate between Robert Nozick and Rawls over the
difference principle as an example. Rawls may say that this disagreement does
not reflect reasonable pluralism
because he can give many arguments in support of his principle and the
difference principle is the outcome of the search for reflective equilibrium.
Sandel says, “To the extent that his arguments are convincing, as I believe
they are, and to the extent that they can be convincing to citizens of a
democratic society, the principles they support are properly embodied in public
policy and law” (Sandel 1998a, p. 207). However, Sandel asks, if it is the
case, “what guarantees that reflections of a similar kind is not possible in
the case of moral and religious controversy? If we can reason about
controversial principles of distributive justice by seeking a reflective
equilibrium, why can we not reason in the same way about conceptions of the
good? If it can be shown that some conceptions of the good are more reasonable
than others, then the persistence of disagreement would not necessarily amount
to a ‘fact of reasonable pluralism’ that requires government to be neutral” (Sandel
1998a, p. 207). For example, he believes that gay rights should not be built on
the basis of neutrality but on convincing arguments which show the moral
justifiability of homosexuality (Sandel 1998a, p. 208).

Sandel concludes that “a more modest notion of justification is
appropriate” (Sandel 1998a, p. 209). Given this notion of justification, it is
possible to reason about the good as well as the right. So political liberalism’s
claim for the priority of the right over the good, or the priority of political
values over non-political values, is undermined (Sandel 1998a, p. 210).

Third, Sandel believes that political liberalism leads to “an unduly
severe restriction that would impoverish political discourse and rule out
important dimensions of public deliberation” (Sandel 1998a, p. 196). Rawls
promotes the idea of public reason which requires that political discourse be
conducted solely in terms of political values all citizens can reasonably be
expected to accept. Voting decisions should also be limited in such a way
(Rawls 1993, p. 215). Sandel charges that political liberalism would leave “little
room for the kind of public deliberation necessary to test the plausibility of
contending comprehensive moralities- to persuade others of the merits of our
moral ideals, to be persuaded by others of the merits of theirs” (Sandel 1998a,
p. 211). For example, it would restrict arguments for gay rights in substantive
terms, and also the arguments of the abolitionists: “Rooted in evangelical
Protestantism, the abolitionist movement argued for the immediate emancipation
of the slaves on the grounds that slavery is a heinous sin” (Sandel 1998a, p.
213).

Rawls justifies the priority of the political values realized by a
well-ordered constitutional regime by drawing a parallel with the restrictive
rules of evidence in criminal trials (Rawls 1993, p. 218). Sandel argues that “to
assess restrictive rules of public reason, we need to weigh their moral and
political cost against the political values they are said to make possible; we
must also ask whether these political values- of toleration, civility, and
mutual respect- could be achieved under less restrictive rules of public reason”
(Sandel 1998a, p. 215). He thinks the results of this weighing process may vary
from case to case. Rawls does not intend to do such comparison (Rawls 1993, p.
157), but Sandel thinks it is unavoidable (Sandel 1998a, p. 216).

The restrictions of the ideal of public reason, Sandel believes,
incur severe political costs: “democratic politics cannot long abide a public
life” which is abstract and detached from moral purposes (Sandel 1998a, p.
216). This would generate widespread disenchantment. Then it is likely that the
“public attention becomes riveted on the private vices of public officials”
(Sandel 1998a, p. 217). More seriously, since political liberalism’s “vision of
public reason is too spare to contain the moral energies of a vital democratic
life,” it would create “a moral void that opens the way for the intolerant, the
trivial, and other misguided moralisms” (Sandel 1998a, p. 217) such as the Moral
Majority and the Christian right.

Sandel further argues that the restrictions of the ideal of public
reason is not consonant with Rawls’ emphasis on respect: “we respect our fellow
citizen’s moral and religious convictions by engaging, or attending to, them-
sometimes by challenging and contesting them, sometimes by listening and
learning from them” (Sandel 1998a, p. 217). Of course, agreement is not
guaranteed but the emphasis on moral dialogue is a “more suitable ideal for a
pluralistic society. To the extent that our moral and religious disagreements
reflect the ultimate plurality of human goods, a deliberative mode of respect
will better enable us to appreciate the distinctive goods our different lives
express” (Sandel 1998a, p. 218).

Many people criticize communitarianism in this way: although
communitarianism can offer insightful criticisms of liberalism, it cannot
provide a constructive alternative to liberalism. This criticism was valid to
some extent but now much less applicable due to the development in the
nineties. Communitarians have developed their philosophy in a systematic way,
and tried to apply it to social and political issues (cf. Tam 1998). The
efforts of Amitai Etzioni were especially impressive. Besides editing and
publishing several books (Etzioni 1996, 1998, 1999), he founded The Responsive Community in 1990. This
is a journal for communitarian philosophers to articulate their views on public
policy issues. The communitarians have also published a manifesto: “The
Responsive Communitarian Platform: Rights and Responsibilities” (Etzioni 1998,
pp. xxv-xxxix). Similarly, Sandel has also moved into a more constructive phase
of philosophizing. His Democracy’s
Discontent: America in Search of a Public Philosophy, besides being a
polemic against liberalism, is also a positive exposition of Sandel’s civic
republicanism, although it is by no means fully developed.

Civic Republicanism versus
Procedural Liberalism

By democracy’s discontent, Sandel is referring to the anxiety of the
age, for example, the “fear that, individually and collectively, we are losing
control of the forces that govern our lives. The other is the sense that, from
family to neighborhood to nation, the moral fabric of community is unraveling
around us” (Sandel 1996, p. 3). The liberal public philosophy is deemed
inadequate to this situation because it is unable “to speak convincingly about
self-government and community.” Liberals’ idea of the procedural republic emphasizes
neutrality, or, in other words, the “priority of fair procedures over
particular ends” (Sandel 1996, p. 4). This idea lacks the civic resources to
sustain self-government.

The liberals “assume that freedom consists in the capacity of
persons to choose their values and ends” (Sandel 1996, p. 5). Sandel thinks
that this assumption is only a recent arrival in the last 40-50 years. In the
American political culture, there is a long tradition of republican political
theory which has a different understanding of freedom: “liberty depends on
sharing in self-government… It means deliberating with fellow citizens about
the common good and helping to shape the destiny of the political community.
But to deliberate well about the common good requires more than the capacity to
choose one’s ends and to respect others’ rights to do the same. It requires a
knowledge of public affairs and also a sense of belonging, a concern for the
whole, a moral bond with the community whose fate is at stake” (Sandel 1996, p.
5). To realize freedom, citizens need civic virtues. So politics can’t be
neutral toward the values of citizens. Sandel believes that this kind of civic
republicanism is a sorely needed corrective to the impoverished civic life of America.

For the liberals, obligations are understood either “in terms of
duties universally owed or obligations voluntarily incurred.” It follows that
there are no special obligations to fellow citizens, e.g., obligation to
advance their good, apart from the universal, natural duty not to commit
injustice. Consequently, it is “difficult to account for civic obligations and
other moral and political ties that we commonly recognize. It fails to capture
those loyalties and responsibilities whose moral force consists partly in the
fact that living by them is inseparable from understanding ourselves as the
particular persons we are- as members of this family or city or nation or people,
as bearers of that history, as citizens of this republic” (Sandel 1996, p. 14).

This problem is especially acute for those egalitarian liberals like
Rawls because the above thin understanding of obligation is “even too weak to
support the less strenuous communal obligations expected of citizens in the
modern welfare state” (Sandel 1996, p. 16). Moreover, it is vulnerable to the libertarian
argument that redistributive policies use some people as means to others’ ends,
and so it is an offense to the inviolable plurality of individuals. “If those
whose fate I am required to share really are, morally speaking, others, rather than fellow participants
in a way of life with which my identity is bound, then liberalism as an ethic
of sharing seems open to the same objections as utilitarianism. Its claim on me
is not the claim of a community with which I identify, but rather the claim of
an arbitrarily defined collectivity whose aims I may or may not share” (Sandel
1996, p. 17). If it is replied that it is a matter of equal respect for all
persons, Sandel would ask why Rawls’ difference principle only applies to those
in the same country. If all persons count equally, then welfare should be on
the same par with foreign aid. “What egalitarian liberalism requires, but
cannot within its own terms provide, is some way of defining the relevant
community of sharing, some way of seeing the participants as mutually indebted
and morally engaged to begin with”(Sandel 1996, p. 17).

The republican theory seems to be able to provide this perspective.
It interprets rights in the light of a particular conception of good society-
the self-governing republic, and it leads to a politics of the common good. “Unlike
utilitarianism, republican theory does not take people’s existing preferences,
whatever they may be, and try to satisfy them. It seeks instead to cultivate in
citizens the qualities of character necessary to the common good of
self-government” (Sandel 1996, p. 25). So the moral character is a public, not
merely private, concern because liberty is internally connected to
self-government and the civic virtues that sustain it.

Sandel fully understands that from the liberal standpoint, “the
republican emphasis on self-government leaves individual rights vulnerable to
the tyranny of the majority. Moreover, the republican claim that freedom
depends on civic virtue gives the state a stake in the character of its
citizens that may open the way to coercion and oppression.” However, he replies
that from the republican standpoint, “to view citizens first and foremost as
objects of treatment, however fair, rather than as agents of self-rule is to
concede from the start a certain disempowerment, or loss of agency. If liberty
requires citizens whose identity is defined in part by civic responsibilities,
then the public life of the neutral state may erode rather than secure our
agency as free persons” (Sandel 1996, p. 27). I discuss the responses to Sandel’s
critique of liberalism below.

The Impossibility of Neutrality

Andrew Siegel tries to respond to Sandel’s claim that it is
sometimes impossible to bracket the truth of some controversial moral or
religious doctrines. Commenting on the case of slavery, Siegel asserts that
political liberalism’s political conception of the person is simply incompatible
with the institution of slavery: the “idea of a fair system of cooperation and
the political conception of the person which goes with this idea are sufficient
to generate principles which bar slavery” (Siegel 1998, p. 153). Similarly, Rawls
reacts with signs of incomprehension to the charge that political liberalism
would not commit to the rejection of slavery: "A further misunderstanding
alleges that an argument in public reason could not side with Lincoln
against Douglas in their debates of 1858. But
why not? Certainly they were debating fundamental political principles about
the rights and wrongs of slavery. Since the rejection of slavery is a clear
case of securing the constitutional essential of the equal basic liberties,
surely Lincoln's view was reasonable (even if
not the most reasonable), while Douglas's was
not. Therefore, Lincoln's
view is supported by any reasonable comprehensive doctrine. It is no surprise,
then, that his view is in line with the religious doctrines of the Abolitionists
and the Civil Rights Movement. What could be a better example to illustrate the
force of public reason in political life?" (Rawls 1999, p. 174).

Indeed, in his 1993 book, Rawls has repeatedly asserted that the
rejection of slavery is a fixed point for political liberalism: “We may accept
provisionally, though with confidence, certain considered judgments as fixed
points, as what we take as basic facts, such as slavery is unjust.” (Rawls
1993, p. 124). He also “thinks it illuminating to say about slavery that it
violates principles that would be agreed to in the original position by the
representatives of persons as free and equal… there is no possibility that a
principle allowing slavery would be agreed to. That is a fact related to the
injustice of slavery” (Rawls 1993, pp. 124-125). So has Sandel ignored all
these passages and misunderstood Rawls’ position?

Perhaps not. Both Rawls and Siegel do not
seem to understand the exact nature of Sandel’s objection. Of course, slavery
is incompatible with the public reason and the political conception of person
in contemporary America.
However, the question is whether it is compatible with the public reason in
1858. Political liberalism is not built upon universal values. Its starting
point is the fundamental idea implicit in the political culture at a particular
time and place. Although slavery is inconsistent with current American political
culture, this kind of argument would have no force in 1858. In fact, Sandel has
anticipated this reply, and pointed out that the “notions of equal citizenship
implicit in American political culture of the mid-nineteenth century were
arguably hospitable to the institution of slavery” (Sandel 1998a, p. 202). For
example, Douglas argued that in the
Declaration of Independence, “the signers of the Declaration were asserting the
right of the colonists to be free of British rule, not the right of their black
slaves to equal citizenship” (Sandel 1998a, p. 202).

Furthermore, how illuminating, in fact, it is to say that slavery
would be precluded in the original position, and why is this fact related to
the injustice of slavery? Besides asking why the slave-holder should care about this fact, we can also
remind Rawls that “the original position is simply a device of
representation…it models what we regard – here and now – as fair
conditions” (Rawls 1993, p. 25; italics mine). So the allegedly illuminating
fact says nothing more than that slavery is regarded as unjust by contemporary
Americans. Sandel seems justified to conclude that political liberalism in 1858
would not necessarily reject slavery. Perhaps this is embarrassing enough for
political liberalism.

The above discussions bring out a fundamental problem of Rawls’
political liberalism: the tension between his methodological commitment and his
substantive commitment to freedom and equality. On the one hand, Rawls’ view of
justice as fairness treats the idea of society as a fair system of social
cooperation between free and equal persons as a fundamental axiom. On the other
hand, to avoid relying on controversial comprehensive doctrines, Rawls asserts
that the “bases of this view lie in fundamental ideas of the public political
culture as well as in citizens’ shared principles and conceptions of practical
reason” (Rawls 1993, p. 97). We need to ask whether political liberalism
commits to freedom and equality because they belong to Americans’ public
political culture or whether it endorses Americans’ public political culture
because it commits to freedom and equality? Which way is the direction of
justification? When the two coincide, we may shelve the issue for the time
being. When they do not coincide or even conflict with one another, the
question is inescapable. At times, Rawls seems to say that his methodological
commitment has priority (see the quote from Rawls’ 1980 paper earlier). If it
is the case, then the methodology of political liberalism at other times and
places would lead to radically different substantive commitments. For example,
perhaps a political liberal in America
in 1800 or in ancient Greece
will uphold democracy for the citizens while allowing the non-citizens to be
enslaved. A contemporary political “liberal” in some Asian countries may even
support an authoritarian government.

However, this seems to reduce political liberalism to cultural
relativism and empties it of any substantive content. Rawls’ response above
suggests that if he were to travel back in time to 1858, he would drop the
appeal to public political culture, provided that this would not categorically
reject slavery. So perhaps we need to take seriously Rawls’ claim that
political liberalism is designed for Americans here and now alone.[7] Interpreted
this way, Sandel’s case of slavery may not be damaging to Rawls’ political
liberalism. However, this would also render his political liberalism largely
irrelevant to people who aspire to freedom and equality at other places and
times. For example, I doubt that the Chinese and other Asian activists who want
to promote freedom and democracy in their cultures will react to this kind of
political liberalism with enthusiasm.

The case of abortion presents a more serious challenge to Rawls’
political liberalism because it is still hotly disputed in contemporary America. Rawls
endorses a typical liberal position on abortion: “we consider the question in
terms of these three important political values: the due respect for human
life, the ordered reproduction of political society over time, including the
family in some form, and finally the equality of women as equal citizens… any
reasonable balance of these three values will give a woman a duly qualified
right to decide whether or not to end her pregnancy during the first semester.
The reason for this is that at this early stage of pregnancy the political
value of the equality of women is overriding… any comprehensive doctrine that
leads to a balance of political values excluding that duly qualified right in
the first trimester is to that extent unreasonable; … it may also be cruel and
oppressive… we would go against the ideal of public reason if we vetoed from a
comprehensive doctrine that denied this right” (Rawls 1993, pp. 243-4). This
footnote has drawn a lot of criticisms.[8] Critics
think that this clearly shows that Rawls’ claim to impartiality with respect to
comprehensive doctrines is bogus because his position on abortion seems to
preclude the Catholic doctrine of the fully human status of the fetus.

In reply, Rawls says in another footnote, "Some have quite
naturally read the footnote … as an argument for the right to abortion in the
first trimester. I do not intend it to be one. (It does express my opinion, but
my opinion is not an argument.)” Although Rawls admits the error of misleading
others, he continues to affirm the following: “Suppose … there is a reasonable
argument in public reason for the right to abortion but there is no equally
reasonable balance, or ordering, of the political values in public reason that
argues for the denial of that right. Then in this kind of case, but only in
this kind of case, does a comprehensive doctrine denying the right to abortion
run afoul of public reason… Of course, a comprehensive doctrine can be
unreasonable on one or several issues without being simply unreasonable"
(Rawls 1999, p. 169).

It seems to me Rawls has misunderstood the criticism. The critics
are not saying that Rawls has mistakenly or assumed without arguments that
public reason will endorse the right to abortion. They are arguing that even if
by public reason alone we come to that conclusion, the final affirmation of the
right to abortion still presupposes the falsity of the Catholic doctrine. So
political liberalism’s attempt to bracket all controversial comprehensive
doctrines is not in the end feasible. All along Rawls is sticking to his ideal
of public reason and refuses to consider why, from the Catholics’ perspectives,
the political values of public reason necessarily override the value of the
life of the fetus. Obviously the great values cited by Rawls to justify the
priority of political values in ordinary cases, e.g., civility, stability of a
well-ordered society (as Rawls understands it), will not do in this case if
the Catholics are right. Instead of considering this central problem, Rawls
just reaffirms his idea of public reason and offers two consolation prizes to
the Catholics: first, although the Catholic view on abortion is unreasonable
(or even cruel and oppressive), Catholicism as a whole is not;[9] second,
although Catholics should not even vote for the regulation of abortion,
"they need not themselves exercise the right to abortion”, and they “may, in
line with public reason, continue to argue against the right to
abortion" (Rawls 1999, p. 170; italics mine).

The above dispute shows clearly that
Rawls’ political liberalism can hardly avoid all controversial assumptions. Let
us consider how the people in the original position will decide on the issue of
abortion rights. I suppose they can agree that when mothers’ lives are in
danger, abortion is to be allowed. However, in other cases, it is not clear
that they will agree on the right to abortion. First, each of them knows that
he or she has been a fetus in some sense: even if he or she is not identical to
that fetus, his or her coming into being directly depends on the survival of
that fetus. However, he or she may not be woman at all. Second, to grant
abortion on demand would be very dangerous for their survival; disallowing
abortion will incur serious inconvenience or at most hardship in life.
According to Rawls, the “maximin rule [of rational choice] tells us to rank
alternatives by their worst possible outcomes: we are to adopt the alternative
the worst outcome of which is superior to the worst outcomes of the others”
(Rawls 1971, pp. 152-53). In accordance with this rule, it seems that people in
the original position should decide against the right to abortion. They are
less likely to suffer the worst outcome of the prohibition of abortion than the
worst outcome of the contrary decision to allow abortion, and the former is
superior to the latter.

Although the above argument seems plausible to me, I guess Rawls
will come up with considerations that show that the original position will lead
to the affirmation of the right to abortion after all. The complexity and
endlessness of the ensuing debate after Rawls’ publication of A Theory of
Justice (cf. Richardson
1999a, 1999b) shows that the construal of the original position can readily be
modified or qualified in many different ways. I also bet that if the idea of
the original position turns out to be inhospitable to the primacy of the equal
rights of women, which Rawls affirms in the case of abortion, he will abandon
the former rather than the latter. Despite the claim that he is applying the
principle of toleration to philosophy itself, Rawls does not really tolerate
philosophical or religious conceptions of person radically at odds with his
liberal conception. It is true that for him all persons are equal, but who are
to be counted persons here? Rawls explains the basis of this equal worth: “in
virtue of their two moral powers (a capacity for a sense of justice and for a
conception of the good) and the powers of reason (of judgment, thought, and
inference connected with these powers), persons are free. Their having these
powers to the requisite minimum degree to be fully cooperating members of
society makes persons equal” (Rawls 1993, p. 19). Clearly neither fetuses nor
infants possess those moral powers to the degree which make them fully
cooperating members of society. It follows that fetus and infant are not equal
to adult citizens, men or women, given this conception. This conception may be
the correct one, but it is by no means neutral. In affirming the primacy of
this conception, it is denying, say, the religious conception of all human
beings as made in the image of God and possessing infinite worth. Rawls’ claim
that he has made no comparison between political values and transcendent values
is quite puzzling (Rawls 1999, p. 173, n.89).

Siegel also discusses the case of abortion, and this time he seems
to side with Sandel rather than Rawls. He considers different attempts by the
liberals to uphold abortion while bracketing controversial beliefs. For
example, Dworkin defends the right to abortion in the name of religious
freedom: since opposition to abortion is grounded on religious beliefs, a ban on
abortion is a violation of religious freedom. Siegel thinks that it has
unwelcome consequences. He supposes there is “a religious group which believes
that (painlessly) sacrificing their own newborn babies is required for the
salvation of the members of the group” (Siegel, p. 156). In this case, even
liberals will deem it an atrocious act which should be banned. Isn’t this also
imposing a particular view of the sacred on them, and violating their religious
freedom? If we argue that this prohibition is based on the fact that infants are
sentient (or having a potential for higher things), then we should also
prohibit the killing of animals (or fetuses).

Siegel concludes, “The more plausible explanation for the liberal’s
opposition to infanticide is that she believes infants have an intrinsic value
which is inviolable. It seems most liberals would be willing to interfere with
the hypothetical religious group’s practice precisely because it is so at odds
with their own conception of the sacred. But it follows that the liberal
defense of abortion rights is in fact generally premised on a rejection of the
pro-life view of the value of fetal life” (Siegel, p. 156). Siegel suggests a
neutral solution: to leave the issue to the states to decide. Yet he believes
the liberals “will no doubt be strongly inclined to cling to their metaphysics
if its expulsion from the law entails a denial of constitutional protection of
abortion rights” (Siegel, p. 157).

The way Rawls handles the Catholic position on abortion really
puzzles me. While he never seems to take it seriously, Rawls writes as if he is
making great concessions to it. Perhaps the comment of William Connolly is
relevant here: “the claim to take a position on these issues without invoking
controversial metaphysical ideas is soon seen to be a façade by others.
Academic secularists are almost the only partisans today who consistently purport
to leave their religious and metaphysical baggage at home. So the claim to
being postmetaphysical opens you to charges of hypocrisy or false
consciousness: ‘You secularists quietly bring a lot of your own metaphysical
baggage into public discourse even as you tell the rest of us to leave ours in
the closet’” (Connolly 1999, p. 37; italics in original).

The Priority of the Right over the Good

Although Rawls’ political liberalism commits to the priority of the
right over the good, he attempts to argue for this apart from controversial
assumptions like ethical relativism, Kantian conception of the autonomous
individual and so on. Instead Rawls’ argument boils down to the claim that
while the public political culture supports a consensus on the priority of
rights and liberties, the persistence of reasonable pluralism of comprehensive
doctrines makes conceptions of the good essentially contestable. However,
Sandel argues that since conceptions of justice (the right) are as
controversial as conceptions of the good, Rawls’ political liberalism has no
basis to assert the priority of the right over the good. In response to this
criticism, Richard Rorty argues that the right should be thought of as prior to
the good for political purposes. Consistent with the spirit of political
liberalism, the argument here is merely historical, not philosophical: “Procedural
republics … have the best track record among the regimes which we have tried so
far” (Rorty 1998, p. 119).

One obvious problem with this
reply is the dichotomy between a historical argument and a philosophical
argument. Rorty’s historical argument depends on the judgment about what kind
of track record is the best- this is by no means free from philosophical
presuppositions. For example, most can agree that Hong Kong society emphasizes
the priority of rights and liberties more than Singapore
does, but they would disagree vehemently over whether Hong Kong is better than Singapore.
Perhaps Rorty is hinting at the fact that totalitarian regimes which impose a
uniform conception of good on the people tend to produce disastrous results.
This may be true but only shows that the absolute priority of the good to the
total neglect of the right is undesirable. Some regimes can combine the right
and the good in a complicated way. For instance, although they deny the
priority of the right over the good, they need not assert the priority of the
good over the right. They may try to put emphasis on both the right and the
good, and balance one with another. This is the way contemporary political
communitarianism is going (cf. Etzioni 1996, 1999; Lehman 2000; see Frazer
[1999] for a critique). It is doubtful whether the regimes which are deemed to
have the best track record by Rorty are entirely procedural republics.

In fact, Sandel’s argument in Democracy’s
Discontent is historical. He tries to show that American democracy has both
liberal and republican traditions. So the success of American democracy (this
is Rorty’s basic premise) can’t be attributed to the “procedural republic”
alone. Sandel complains that Rorty has ignored the major thrust of his book: “he does not
engage the historically specific, internal critique of procedural liberalism
that constitutes most of the book. To those who defend the priority of the
right over the good on the grounds that it fits with ‘our history and the traditions
embedded in our public life,’ DD
replies that the story is more complicated” (Sandel 1998b, p. 321). It is
because “the liberal conception … is not characteristic of our political
culture and constitutional tradition as such. The image of the person as a
freely choosing, unencumbered self has only recently come to inform our
constitutional practice. Whatever its appeal, it does not underlie the American
political tradition as a whole, much less ‘the public culture of a democratic
society’ as such” (Sandel 1996, p. 103). “To invoke the tradition of American
liberty is to invoke a contest not a consensus” (Sandel 1998b, p. 322), and
hence Rorty is begging the question. The above also puts a question mark over
the basis of Rawls’ political
liberalism.

Of course, the denial of the priority of the right over the good
inevitably produces anxiety (or even consternation) in a liberal mind.
Gutmann’s response is typical and also forceful. She again emphasizes the
dilemma of modern society: the disagreement about the nature of the good life.
She believes communitarian critics of liberalism like Sandel “miss the appeal
of liberal politics for reconciling rather than repressing most competing
conceptions of the good life” (Gutmann 1992, pp. 130-1). She points out civic republicanism’s tendency towards intolerance,
e.g., the exclusion of women and minorities. Sandel has earlier said that “intolerance
flourishes most where forms of life are dislocated, roots unsettled, traditions
undone” (Sandel 1984, p. 17). She replies, “if Sandel is arguing that, when
members of a society have settled roots and established traditions, they will
tolerate the speech, religion, sexual, and associational preferences of
minorities, then history simply does not support his optimism. A great deal of
intolerance has come from societies of selves so ‘confidently situated’ that
they were sure repression would serve a higher cause” (Gutmann 1992, p. 132). For
example, the Puritans’ belief in the common good led them to hunt witches.
Gutmann thinks that the “communitarian critics want us to live in Salem, but not to believe
in witches” (Gutmann 1992, p. 133). Because she does not deem this feasible,
she thinks it is dangerous to weaken the priority of the liberal rights.

Similarly Kymlicka complains that communitarians “do not mention
that these [communal] practices were historically defined by a small segment of
the population, nor do they discuss how that exclusionary history would affect
the politicization of debates about the value of different ways of life…
Forcing subordinate groups to defend their ways of life, under threat or
promise of coercive power, is inherently exclusive. Communitarians simply
ignore this danger and the cultural history which makes it so difficult to
avoid” (Kymlicka 1992, p. 182). Connolly
also charges that Sandel’s Democracy’s Discontent is a sanitized history
of republicanism (Connolly 1998, p. 206).

Gutmann and Kymlicka have a point
here. Liberalism is addressing the genuine problem of pluralism but we need to
point out Rawlsian liberalism goes beyond the intent to avoid conflicts. For
example, Steven Kautz (1995) argues that liberals Rawls and Dworkin want to
establish a liberal orthodoxy as well. (Kautz is also exploring a kind of
liberalism that does not go beyond the intent to avoid conflicts. Similarly,
Patrick Neal [1997] advocates a kind of vulgar liberalism that admits to be
merely a modus vivendi.) I agree that any alternative to liberalism must
give an acceptable solution to the problem of pluralism, and accommodate the
value of tolerance. But it does not follow that liberalism is the only, or the
best, solution. For example, instead of giving priority to the right, we can
give the priority to entrenched conceptions of good in a community, provided
the basic rights and liberties are protected. As long as the majority of the
people accept this solution, conflicts can also be avoided.

Gutmann also does not seem to
sufficiently recognize Sandel’s valid point that anomie or moral anarchy will
also lead to intolerance. Intolerant acts can be performed merely out of
selfish desires. The relativism fostered by liberalism may also lead to new
kinds of intolerance (cf. Kautz [1996] on Rorty). It looks as if the crucial
problem is the creation of a tolerant community. Perhaps it is possible to live
in Salem and
not to believe in witches. Gutmann is dismissing this possibility too quickly. The
standard liberal response to critics by invoking past atrocities of non-liberal
political practices may not be applicable to contemporary communitarianism. For
example, Sandel now clearly admits that intolerance could be performed in the
name of the common good of a community. “Republican
politics is risky politics, a politics without guarantees. And the risks it
entails inhere in the formative project. To accord the political community a
stake in the character of its citizens is to concede the possibility that bad
communities may form bad characters… This is the truth in the liberal’s
complaint about republican politics” (Sandel 1996, p. 321).

However, he argues that “the assumption that the capacity for virtue
is incorrigible, tied to roles or identities fixed in advance, is not intrinsic
to republican political theory, and not all republicans have embraced it” (Sandel
1996, p. 319). Although he places hope on the formative aspect of republican
politics, it is not meant to sanction exclusion. The task of soulcraft can be achieved
“not by coercion but a complex mix of persuasion and habituation” (Sandel 1996,
p. 320). There is also no need to assume that the common good is unitary and
uncontestable. The republican conception of freedom only offers a way of
conducting political argument, not transcending it.

Moreover, Sandel makes clear that he is not advocating a
totalitarian community: “The hope for self-government lies not in relocating
sovereignty but in dispersing it… [we need] a multiplicity of communities and
political bodies- some more, some less extensive than nations” (Sandel 1996, p.
345). He emphatically says that republicanism is by no means ignoring the
importance of rights. His debate with Rawls is “not whether rights are
important but whether rights can be identified and justified in a way that does
not presuppose any particular conception of the good life. At issue is not
whether individual or communal claims should carry greater weight but whether
the principles of justice that govern the basic structure of society can be
neutral with respect to the competing moral and religious convictions its
citizens espouse” (1998a, p. x). To deny that the right is always prior to the
good does not mean that principles of justice are always subordinate to the
conceptions of the good in a particular community or tradition: “The mere fact
that certain practices are sanctioned by the traditions of a particular
community is not enough to make them just.” It is only saying that “rights
depend for their justification on the moral importance of the ends they serve”
(Sandel 1998a, p. xi).

While Sandel admits that the republican project has risks, he points
out that liberalism’s attempt to avoid the formative project also has danger (maybe an even greater one). The problematic
liberal conception of person is shown up in practice, e.g., discontent, moral
void, loss of mastery, growing sense of disempowerment, but the “voluntarist
conception of freedom leaves us ill equipped to contend with this condition”,
and “[t]he procedural republic … cannot secure the liberty it promises because
it cannot inspire the moral and civic engagement self-government requires” (Sandel
1996, p. 323). The loss of community is also the loss of the capacity for
narrative, and this “would amount to the ultimate disempowering of the human
subject, for without narrative there is no continuity between present and past,
and therefore no responsibility, and therefore no possibility of acting
together to govern ourselves” (Sandel 1996, p. 351).

The above discussions have been centred around one standard liberal
response to Sandel’s attack on the priority of the right over the good: denial
of this thesis will lead to intolerance and the formative project is inherently
risky. Kymlicka’s response to Democracy’s Discontent explores another
way: the formative project can to some extent be accommodated within
liberalism. For him, there is a crucial distinction between promoting virtues and
promoting a conception of good life.[10] “The
distinction between the good and the right is a distinction between two kinds
of justifications for public
policies, not a distinction between two kinds of objects of public policy” (Kymlicka 1998, pp. 137-8; italics in
original). Although liberalism has no intrinsic commitment to civic virtue, it
is still an open question whether liberalism can promote civic virtue. For
example, liberals can promote virtue “on the grounds that possessing them will
make someone more likely to fulfill her obligations of justice” (Kymlicka 1998,
p. 136), e.g., civility, public reasonableness, sense of justice, critical
attitude towards governmental authority. To do this is consistent with the
affirmation of the priority of the right over the good.

So Sandel is mistaken in thinking that the promotion of a conception
of virtue or communal identity implies the promotion of a conception of good
life: “a conception of the good life is just that- i.e. a conception of what
makes one’s life worth living… These virtues and identities do not tell us
where our own good lies; rather, they tell us how far we can go in pursuing our
own good” (Kymlicka 1998, pp. 138-9). Kymlicka concludes that the merits of
Sandel’s civic republicanism is no argument for abandoning the claim that
justice is the first virtue of political institutions (Kymlicka 1998, p. 141).
He also suspects that in case of conflict between justice and communal good,
Sandel will not choose differently from him. Civic republicanism and procedural
liberalism should be allies rather than enemies after all (Kymlicka 1998, p. 131).

In response, Sandel admits that both liberalism and republicanism
may have formative projects, but he thinks the scopes of these projects are
different: “it would be defensible, from the standpoint of republican freedom,
to discourage practices that glorify consumerism on the grounds that such
practices promote privatized, materialistic habits, enervate civic virtue, and
induce a selfish disregard for the public good” (Sandel 1998b, p. 329). For
liberalism, “what matters is fair access to the fruits of consumption” (Sandel
1998b, p. 330). So there are still two different visions of citizenship and the
public realm.

This is not yet a complete response to Kymlicka’s reply. To
vindicate the superiority of civic republicanism’s formative project, Sandel
also needs to argue for the inadequacy of the liberal formative project- but of
course what Sandel has extensively written elsewhere is relevant here. Let us
consider the liberal virtues which Kymlicka mentions: civility, public
reasonableness, sense of justice, and critical attitude towards governmental
authority. I think Sandel will probably argue that these virtues alone
are not sufficient to maintain a thick identity of a community, and the moral
energy needed to sustain effective self-government. An individual can be civil
and reasonable towards other citizens but at the same time entirely preoccupied
with egoistic pursuits within the bounds of justice. Moreover, an individual’s critical
attitude towards governmental authority will not help the development of a
patrioticspirit and a self-sacrificial
commitment to the public good, even if it does not hinder it. As William
Galston observes, many Americans assert their rights but are not willing to
fulfill their responsibilities, e.g., their “insistence on one’s right to trial
by jury without the corresponding willingness to serve on juries” (Galston
1998, p. 76). Kymlicka is correct to say that Sandel is his ally for the cause
of social equality. However, I think Sandel will press the question whether
Kymlicka’s liberal virtues alone will adequately support the sense of
community needed for the welfare state.[11]

Kymlicka’s list of liberal virtues are mostly related to the mind.
It confirms Connolly’s observation that modern liberalism ignores the visceral
register of subjectivity and intersubjectivity “in the name of a public sphere
in which reason, morality, and tolerance flourish. By doing so it forfeits some
of the very resources needed to foster a generous pluralism.” It is because the
visceral register, if properly utilized, “can be drawn upon to thicken an
intersubjective ethos of generous engagement between diverse constituencies”
(Connolly 1999, p. 3).

In response to this reply, perhaps
Kymlicka will argue that a thin identity of community
is sufficient. The basis for communal identity is not necessarily a shared
conception of the good, but rather a more diffuse sense of belonging to an
intergenerational society (Kymlicka 1998, pp. 136-7). In order to sustain just
institutions and to rectify injustices, Kymlicka thinks it best to promote thin
national identities together with local identities, say, of minority groups. Furthermore,
other liberals will argue that paradoxically, a thin identity is exactly what
constitutes the American community. For example, Clifford Orwin thinks that “Americans have always aspired to constitute
a community, but one of self-reliant individuals…. Sandel’s ‘encumbered self,’
fully constituted by its communal environment, is not a homespun article… We
have all been raised as members of a community of liberals” (Orwin 1998, p. 90).
So Orwin instead calls for a renewal of individualism, and the communal
elements of liberalism: “Not until we are again willing to take responsibility
for ourselves as individuals will we be fit to assume it as a community” (Orwin
1998, p. 91). As a memorable sentence of Gutmann says, “The unencumbered self
is … the encumbrance of our modern social condition” (Gutmann 1992, p. 129).

Still others argue that in our postmodern situation, a communitarian
understanding of identity is inadequate: “Nostalgia for a republicanism of
self-contained islands of political action cannot hope to consolidate itself
today; such an ideal can only foster melancholy or the angry translation of
traditional republican virtues into weapons of cultural war against vulnerable
constituencies held responsible for failure to attain the impossible end”
(Connolly 1998, p. 210). “Contemporary civic pluralism needs citizens who
affirm comparative elements of contingency and contestability in those
identities” (Connolly 1998, p. 210). All in all, critics of Sandel argue that a
liberal understanding of identity is more appropriate to contemporary life.

First, we need to point out Orwin’s misunderstanding of Sandel, who
from the very beginning has only asserted the partial constitution of a self by his community. He also realizes
that a self in contemporary society typically belongs to multiple communities
(Sandel 1996, p. 345). He clearly recognizes that the “civic virtue distinctive
to our time is the capacity to negotiate our way among the sometimes
overlapping, sometimes conflicting obligations that claim us, and to live with
the tension to which multiple loyalties give rise” (Sandel 1996, p. 350).
Sandel need not deny that Americans aspire to constitute a community of
free-reliant individuals and the unencumbered self is to some extent the encumbrance
of our modern social condition. However, I think he is correct to argue that it
is incoherent to suppose the ideal of individualism or an unencumbered self alone
can constitute a modern community. Just think of the innumerable occasions when
those self-reliant individuals need to count upon others’ cooperation in a
modern society.

Sandel further queries whether it is advisable to make the essential
contestability of self-identity into a virtue: “First, as a matter of moral
psychology, decentering or disrupting people’s sense of who they are does not
necessarily inspire greater openness toward the practices and convictions of
others. To the contrary, generosity of spirit is more likely to flow from
confidently situated selves than from persons constantly confronted with the
contingency and contestability of their identities. Second, dogmatism and
fundamentalism that Connolly fears may themselves be symptomatic reactions to
dislocating forces of contemporary life” (Sandel 1998b, p. 334).

The Limits of Public Reason

In response to Sandel’s criticisms of Rawls’ idea of public reason,
some liberals emphasize the limits of morality in public discourse. For
example, Siegel claims that because Sandel is blind to the depth of moral divisions,
he fails to see that moral argument in constitutional adjudication can do as
much damage as it can good (Siegel 1998, p. 157). So although Siegel admits
that liberal neutrality is not in principle possible, it can help shelter
individual rights. Furthermore, it is “far from obvious that moral argument in
constitutional law is necessary for cultivating an appreciation for different
ways of life” (Siegel 1998, p. 158). For instance, moral persuasion can be done
in nonstate forums. Similarly, while Pettit also holds to a kind of republicanism
which rejects no-value neutralism, he thinks a single value, i.e., freedom as nondomination,
is sufficient. He does not want to “let loose of the dogs of moralistic
enthusiasm” (Pettit 1998, p. 55).

I do not find the above arguments convincing. If both Siegel and
Pettit recognize that the public forum can’t be neutral, then it should be in
principle open to all kinds of moral argument. To insist on the exclusive
primacy of rights or nondomination talk seems to reflect a partisan stand. If the
liberals cannot provide good moral arguments for the primacy of rights, then
the restrictions of the public reason are not justified. In response to Pettit’s
worry about moral enthusiasm, Sandel replies: “the indeterminacies Pettit would
banish are essential to the contestable, democratic character of republican
politics. Avoiding domination is a worthy political end, but it is not the only
end… people disagree about what counts as a domination… how to identify and
cope with the sources of domination in the modern world is an intensely
political question that too often goes unaddressed in our politics. One way of
placing it on the political agenda might be, indeed, to ‘welcome into the
public forum all the discontented, moralistic voices that are currently
marginalized.’ Mobilizing citizens to contend with economic inequality and the
power of special interests require moral and civic energies now lacking in
American politics… it is a defect of procedural liberalism that it keeps ‘the
dogs of moral enthusiasm’ on too short a leash. Pettit’s tame republicanism
offers little to remedy this condition” (Sandel 1998b, p. 327).

We should also note that Rawls has recently further relaxed the
restrictions of his public reason. First, the restrictions of the public reason
only apply to judges, state officials, etc., but not to “the background culture
with its many forms of non-public reason nor to media of any kind. Sometimes
those who appear to reject the idea of public reason actually mean to assert the
need for full and open discussion in the background culture. With this
political liberalism fully agrees” (Rawls 1999, p. 134). Second, Rawls now
thinks that the requirement of public reason “still allows us to introduce into
political discussion at any time our comprehensive doctrine, religious or
nonreligious, provided that, in due course, we give properly public reasons to
support the principles and policies our comprehensive doctrine is said to
support. I refer to this requirements as
theproviso" (Rawls 1999, pp. 143-144; italics in original).
The "proviso is to be appropriately satisfied in good faith. Yet the
details about how to satisfy this proviso … cannot feasibly be governed by a
clear family of rules given in advance" (Rawls 1999, p. 153). Third,
"there are no restrictions or requirements on how religious or secular
doctrines are themselves to be expressed; these doctrines need not, for
example, be by some standards logically correct, or open to rational appraisal,
or evidentially supportable" (Rawls 1999, p. 153). While Sandel may still
not be completely happy with Rawls’ idea of public reason, this idea is now so
attenuated that perhaps in practice Sandel’s emphasis on deliberation of the
common good can also be realized on Rawls’ terms.

Conclusion

Although I think Sandel’s three criticisms of Rawls’ political
liberalism are basically correct, I agree that his civic republicanism is not
without problems. “Sandel is more persuasive in stating problems than in
finding solutions” (Orwin 1998, p. 87). Pettit is correct to some extent in
saying that Sandel “fails to explain how self-government is supposed to be
implemented, especially in a society as complex and large as the United States
today, and he fails to say anything about how self-government is going to be
made proof against what Jefferson himself described as the tyranny of the
majority” (Pettit 1998, p. 47).

Moreover, Sandel has not successfully resolved the tension between
large political community and local communities. He admits his own ambivalence:
“I am sympathetic to localism… Republican freedom requires a sense of
belonging, a moral bond with a particular political community… But
self-government also requires political communities that have some effective
control over their destinies. Given the hyper-mobility of capital, information,
and industrial production, it is unclear whether localities today can meet that
test” (Sandel 1998b, p. 330). But then it is “hard to reconcile this call for
more redistribution with that for a ‘dispersal’ of sovereignty… he [Sandel] faces
a daunting dilemma. He wants the public to retain enough power to curb large
corporations on not just the national but the international plane, but he wants
such public power dispersed rather than concentrated” (Orwin 1998, p. 88).

Despite all these problems, I think Sandel’s civic republicanism
deserves to be worked out in more details, and believe that this will continue
to pose a challenge to contemporary liberalism. If liberalism and civic
republicanism are not exactly allies, as Kymlicka hopes, they can at least be
partners in a fruitful dialogue with one another.

Tam,
Henry. 1998. Communitarianism: A New
Agenda for Politics and Citizenship.Washington Square, New York:
New YorkUniversity Press.

Walzer, Michael. 1983. Spheres of Justice.New
York: Basic Books.

[1] Although it is later denied by Rawls, this is certainly how it
appears to many scholars.

[2] This formulation by Rawls in 1993 is substantially the same as that
in his A Theory of Justice (see p. 302).

[3] Rawls denies that Sandel’s interpretation is correct: “I think
Michael Sandel mistaken in supposing that the original position involves a
conception of the self ‘shorn of all its contingently-given attributes’, a self
that ‘assumes a kind of supraempirical status… and given prior to its ends, a
pure subject of agency and possession, ultimately thin’… The essential point …
is not whether certain passages in A
Theory of Justice call for such an interpretation (I doubt that they do),
but whether the conception of justice as fairness presented therein can be
understood in the light of the interpretations I sketch in this article and in
the earlier lectures on constructivism, as I believe it can be” (Rawls 1992, p.
204, n.21). “I believe this to be an illusion caused by not seeing the original
position as a device of representation. … has no specific metaphysical
implications concerning the nature of the self; it does not imply that the self
is ontologically prior to the facts about persons that the parties are excluded
from knowing” (Rawls 1993, p. 27). Nevertheless, he still thinks Sandel’s work important.

[4] For example, Kukathas and Petttit emphasize that the self is not
entirely constituted by the community or goals he identifies with. The self can
still actively choose what kind of self to become and to revise his goals.

[5] Sandel is often taken to task for ignoring Rawls’ 1980 paper in his
critique of the early Rawls. However, I think when Sandel published his book in
1982, it was then far from certain that Rawls’ 1980 paper was the definitive
development of his position. Furthermore, Sandel’s interpretation of Rawls, I
believe, is at least a reasonable one.

[6] During this period, Charles Larmore (1987, 1990) also developed a
similar kind of political liberalism.

[7] This is close to how Rorty interprets Rawls’ political liberalism.

[9] It seems to me this kind of Rawlsian move is dubious. Although a
comprehensive doctrine may come into conflict with the public reason at many
points, Rawls can still say that that doctrine as a whole is reasonable and
consonant with the public reason. This tends to make his idea of overlapping
consensus vacuous.

[10] Kymlicka (1992) also tries to combine social perfectionism with
state neutralism. In many ways, his liberalism is not so different from
Sandel’s communitarianism.

[11] To further clarify the differences between Kymlicka’s liberalism
and Sandel’s republicanism, perhaps Kymlica can also comment on the cases of
pornography, family law, free speech, etc. which are analyzed in Sandel’s Democracy’s
Discontent.